01a00696
04-21-2000
Carolyn B. Steele, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Carolyn B. Steele, )
Complainant, )
) Appeal No. 01A00696
v. ) Agency No. FNP-99-010
Bruce Babbitt, )
Secretary, )
Department of the Interior, )
Agency. )
____________________________________)
DECISION
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal
from the agency's final decision in the above-entitled matter.<1>
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
On appeal, the complainant contends, among other things, that the
agency failed to articulate legitimate, nondiscriminatory reasons for
her non-selection in 1998. On the contrary, the Chief Ranger averred in
his affidavit (page 219 of the record) that he hired three individuals
for seasonal Resource Manager positions in 1998, one female, age 23,
and two males, ages 21 and 22. He indicated that all three had rehire
eligibility due to their previous experience working at the Monument.
He indicated that, in addition, the complainant had rated herself as
having low levels of understanding on all Natural Resource Management
and Physical Science questions on the application and had no semester
hours or educational background in Resource Management or the natural
resource sciences.
The complainant contends that she proved the articulated reasons were a
pretext for discrimination based on her sex and age and that the persons
hired were young, mostly male, and less experienced/qualified than she.
However, the complainant has not proven that the articulated reasons were
a mask for discrimination based on sex and/or age. The complainant's
application does not indicate any experience in natural resource
management or any training in the natural sciences. In addition, the
record demonstrates that the selecting official hired many women as well
as men for other seasonal positions. A few of the individuals he hired
or rehired were older than the complainant, then age 48, including one
man who was 69 years old.
The Commission also finds that the complainant did not timely raise
non-hiring claims for 1996 and 1997 when she first sought EEO counseling
in 1998. The complainant should have suspected age discrimination in 1996
when she received high ratings on certification lists; the selecting
official did not seem to be listening to her answers to his questions,
and in June 1996 she was told by the woman who answered the telephone that
twenty to twenty-five people had been hired. The complainant purportedly
then asked if the agency hired older people and purportedly was told
that, yes, sometimes the agency hired twenty and twenty-one year olds.
The complainant also should have suspected discrimination in January
1997 if indeed she had been told, as alleged, that she could not obtain
an application from the agency even though there was still time to apply.
Finally, the complainant did not establish a continuing violation because
she did not establish that the 1998 selecting official was involved in
any way in the agency's purported refusal to give her an application
in 1997. The Commission also finds it implausible that an agency that
provided the complainant with applications in 1996 and 1998 would have
denied her an application in 1997 if timely requested.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS
THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 21, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.